Negligence

Question 1

How does a duty of care arise?

Answer 1

Within established relationships (e.g. employers, teachers, parents, manufacturers, vehicle drivers) and where the Caparo test applies

Question 2

What is the Caparo test?

Answer 2

1. That harm to C from D’s breach is reasonably foreseeable
2. There is a relationship of proximity between C and D
3. It is fair, just and reasonable to impose a duty of care

Question 3

In what relationship does a duty of care never arise?

Answer 3

Police to crime victims

Question 4

When does a duty to act arise?

Answer 4

Only where D assumed responsibility to C, where D created a dangerous situation, where D exercised control over C, or where there is a special relationship between C and D

Question 5

What duty of care does a rescuer have?

Answer 5

Duty not to worsen the situation

Question 6

What duty of care does a doctor have in context of medical treatments?

Answer 6

Duty to inform the patient of all material risks (risks that the patient considers important)

Question 7

When does D owe a duty of care over the acts of a third party, as not to cause harm to C?

Answer 7

Only where D exercises control over the third party, or where D had assumed responsibility for the third party’s actions

Question 8

Who has the burden of proof when proving breach of duty + causation?

Answer 8

The claimant

Question 9

What is the standard of judging a breach of duty?

Answer 9

Judged objectively, and lack of experience or knowledge is always irrelevant

Children - judged by a reasonable child of the same age

Professionals with special skills - judged by whether they acted in accordance with the majority opinion of a professional body

Question 10

Can D claim that they were inexperienced and so did not breach their duty?

Answer 10

No, lack of experience or knowledge is irrelevant

Question 11

What are the types of causation?

Answer 11

Legal Causation - no intervening acts from a third party and no grossly unreasonable acts from C, and the TYPE of loss is reasonably foreseeable
(but note the egg shell rule)

Factual Causation - but for test

Question 12

What if the manner of loss was unforeseeable?

Answer 12

It does not matter, as long as the type of harm was foreseeable

Question 13

Breach of duty - what does C need to show if they may have contributed to their loss?

Answer 13

That D’s act was ‘more likely than not’ to have caused the loss

Question 14

Breach of duty - what does C need to show if there are multiple potential causes?

Answer 14

That D’s act was a ‘material contribution’ to the loss

Question 15

Breach of duty - what happens if there is successive harm caused by multiple defendants?

Answer 15

Later defendants will only be liable if they cause new damage/worsen damage

Question 16

What complete defences to negligence are there?

Answer 16

1. Volenti - must show C had full knowledge + assumed the risk freely and voluntarily
2. Illegality - illegality must have been core to C’s act

Question 17

What partial defence to negligence is there?

Answer 17

Contributory negligence, in which case, damages will be apportioned by the courts as just and equitable

Question 18

What is the rule for recovery under pure economic loss?

Answer 18

Only negligent misstatements made by D that C had relied on, over the course of a special relationship and where D had assumed responsibility (and D is aware of the purpose of the advice and it will be shared with C without C making further enquiry), will be recoverable.

Question 19

What damages are considered pure economic loss?

Answer 19

Damage to property that does not belong to C

Loss by cost of purchasing defective products

Any financial loss that does not flow from physical damage

Question 20

Can primary victims of psychiatric harm recover damages?

Answer 20

Yes, as long as physical injury was foreseeable

Question 21

Can someone recover damages for psychiatric injury that flowed from physical injury?

Answer 21

Yes - all the time. The rules here are for psychiatric injury that does not flow from physical injury.

Question 22

What are the requirements for secondary victims of psychiatric harm in order to claim damages?

Answer 22

1. There’s a close tie of love and affection between C and the victim
2. C was present at the accident, or in the immediate aftermath
3. C had witnessed the accident with their own unaided senses
4. There was sudden shock
5. A person of normal fortitude in C’s position would have suffered psychiatric harm

Question 23

Can distress or anxiety amount to psychiatric harm?

Answer 23

Never, as psychiatric injury must be a medically recognised form e.g. PTSD

Question 24

What are the different types of damages that can be recovered under negligence?

Answer 24

1. Pecuniary losses
2. Non pecuniary losses
3. Damage to property and its consequential losses (replacement possible only if property is destroyed, repair possible only if property is damaged)

Question 25

What is the aim of remedies in tort?

Answer 25

To place C in a position had the tort not been committed

Question 26

Does C have a duty to mitigate losses?

Answer 26

Yes

Question 27

Remedies - where the victim had died from the tort committed, what can the victim’s estate claim for the dependents?

Answer 27

1. Funeral expenses
2. Bereavement Losses
3. Damages for loss of dependency

Question 28

Remedies - who can bring bereavement and loss of dependency claims?

Answer 28

1. Victim’s partner or spouse
2. Victim’s cohabiting partner whom they have lived with for the last 2 years
3. Victim’s parents, but only if victim is a minor and was unmarried

Question 29

Remedies - what happens if an injury is divisible and there are multiple defendants?

Answer 29

Then the defendants will apportion the losses

Question 30

Remedies - what happens if an injury is indivisible and there are multiple defendants?

Answer 30

C can claim after any one of the defendants for the full amount

Question 31

What is vicarious liability?

Answer 31

That an employer will be liable for the torts of an employee committed during the course of employment, or the torts of those in a relationship akin to employment AND where there is a sufficiently close connection between the tort and the relationship

Question 32

Vicarious Liability - when is an employee acting within or out of the course of employment?

Answer 32

Acting within course of employment when: only making a minor deviation from the journey, or where the substance of the act was actually allowed

Acting out of the course of employment when: the journey is for a completely different purpose, or where the substance of the act was prohibited

Question 33

Vicarious Liability - when is there a relationship akin to employment?

Answer 33

Where the third party was carrying out an act on behalf of D (the employer)

Where D had assigned the act to the third party

Where the third party’s act is integral to D’s business

Question 34

When will an employer be personally liable for an independent contractor?

Answer 34

1. Where it concerns the non delegable employer’s duty of care to their employees
2. Where the employer failed to select a competent contractor

Question 35

What is the scope of the employer’s personal and un-delegable duty of care to their employees?

Answer 35

1. Provision of safe premises
2. Ensuring colleagues are competent and not a danger
3. Provision of safe equipment
4. Provision of a safe work system (including supervision)
5. Responding to employees at risk of psychiatric injury

Question 36

Can an employer be liable to an employee for a latent defect?

Answer 36

Yes

Question 37

Vicarious Liability - is how the parties label their relationship (employee or independent contractor) conclusive?

Answer 37

No - look at all factors e.g. control, provision of equipment and uniform